It is well established that, absent proof of "undue hardship," an employer is obligated to provide modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position. Indeed, the litigation regarding ADA reasonable accommodations generally focuses on: whether the individual seeking the accommodation is a qualified individual with a disability; what are the essential functions of the job; whether the accommodation offered by the employer would enable the individual to perform the essential functions of the position; whether the parties engaged in the interactive process in good faith; and/or whether the accommodations sought by the individual would pose an undue hardship on the employer.
The recent case of EEOC v. Life Technologies Corp. involved a profoundly deaf employee, Douglas Scrivner, who worked as a material handler (picking prepackaged products and sending them to a pack station) for Life Technologies (LTC), a global biotech corporation with about 9,000 employees and $3 billion in annual sales. Scrivner considered American Sign Language (ASL) to be his primary language, but he had some proficiency in lip reading, reading, and writing. The lawsuit was a challenge to LTC's failure to provide Scrivner with an ASL interpreter for all of the numerous meetings that he was required to attend. (Some occurring daily, some weekly, some monthly, some quarterly, and some "as needed.")
LTC's Defense
LTC's defense was that it had provided ASL interpreters for many meetings (40 in three years), written notes and handouts of the content covered for other meetings, and opportunities for Scrivner to meet one-on-one with his supervisor to ask questions through the exchange of written notes. In a motion for summary judgment, LTC argued that these accommodations enabled Scrivner to perform all of the essential functions of his position, which was confirmed by the fact that Scrivner had: never been disciplined; a good safety record; and received every merit increase for which he was eligible.
In response, the EEOC (on Scrivner's behalf ), citing its own regulations, Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act argued that the ADA requires accommodations that do more than simply allow the employee to perform the essential functions of the job. Rather, the accommodations must also permit the employee to have "full access to the benefits and privileges of employment" as are enjoyed by other similarly situated employees without disabilities. In this case, the EEOC asserted that this requirement was not satisfied because Scrivner seldom understood what was going on in meetings; he was unable to do more than guess at how to do his job; and, as a result, he experienced frustration and anger to the point that he became sick from the stress.
EEOC Regulations Upheld
To prevail on summary judgment, LTC had to persuade the court that the EEOC's regulations exceeded the scope of the EEOC's authority. Not surprisingly, given the substantial deference that courts must grant to administrative agencies when determining the validity of a regulation, LTC lost its argument, i.e., the court found the EEOC's regulation to be valid.
In light of this decision and the EEOC's regulations, in assessing whether an accommodation is reasonable, employers should consider not only whether it enables the employee to perform the essential functions of the job, but also whether it enables the employee to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
Video Remote Interpretation
With respect to individuals who are profoundly deaf, this case is interesting for another reason. A second defense presented by LTC was the undue hardship attributable to the accommodation requested by Scrivner (an ASL interpreter for all meetings), entailing a cost of more than $50,000 a year (nearly twice Scrivner's salary), and substantial administrative difficulties due to the irregular scheduling of many of the meetings. The court rejected this defense based upon representations by the EEOC regarding a vendor who could provide video remote interpretation through video conferencing, without advance scheduling, at a cost of $3 per minute, with only a 15-minute minimum. (Apparently this solution did not surface until the summary judgment stage of the litigation, a fact about which the court criticized the parties, suggesting a failure (particularly on the part of Scrivner and the EEOC) to engage in the interactive process in good faith.)
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